Andrew McDiarmid@AnnemarieBridy @creativecommons I finished reading this morning and agree. Lots of ink spilled and lots of sniping here for an opinion that only addresses the first factor and claims to be holding narrowly for this particular licensing use.
bergmayer@andwewmcd @AnnemarieBridy I think the “licensing use” point is an important limiting factor—but it’s going to be cited for the first factor in every case, not just cases that somehow also are only considering the first factor. so that’s annoying, because it imports the fourth factor into the first, which everyone will have to deal with now all the time
@andwewmcd @AnnemarieBridy and focusing on specific uses might make sense as policy, but it’s an awkward fit for me with the actual way the exclusive rights are granted by the statute. Did Andy Warhol infringe the reproduction or derivative work right at the time he created the work, yes or no? This kind of “use” analysis just ignores that. It’s a reasonable reading of § 107 but sort of conceptually at odds with § 106. There is no exclusive right called “licensing to a magazine”